Citation: Lysak v. Atkinson, 2020 ONSC 6477

DIVISIONAL COURT FILE NO.: 659/19

DATE: 2020-10-23

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: Gord Lysak, Applicant

AND: Zoe Lorraine Atkinson, Respondent

BEFORE: Penny J.

COUNSEL: David S. Strachin for the Applicant Zoe Lorraine Atkinson on her own behalf

ENDORSEMENT

Background

[1] The Landlord and Tenant Board made an order on September 3, 2019 terminating Ms. Atkinson’s tenancy for non-payment of rent and other reasons. Ms. Atkinson’s request for a review was dismissed by the Board on November 25, 2019. She appealed to this court on December 3, 2019. Among other things, her appeal had the effect of staying the Board’s eviction order. Ms. Atkinson’s motion to extend the time for perfecting her appeal was granted, on terms, by Favreau J. on February 19, 2020.

[2] The terms of that order were:

(a) perfection of the appeal no later than March 6, 2020;

(b) payment of all outstanding rent ($4,473) by February 28, 2020;

(c) ongoing payment of rent until the appeal was heard; and

(d) if Ms. Atkinson did not pay her rent, the Landlord was at liberty to move without notice before the registrar on affidavit evidence demonstrating non-compliance. In that event, the registrar was ordered to dismiss the appeal and lift the stay of the Board’s eviction order, such that it could be enforced.

[3] Immediately after Favreau J. released her decision, Ms. Atkinson sought an urgent motion to stay Favreau J.’s order. Corbett J. denied that motion on February 20, 2020, on the basis that there was no evidence to support the granting of an interim stay. Ms. Atkinson then requested an urgent hearing of her motion to review the order of Favreau J. That request was also denied by Corbett J., on the basis that there was no evidence of urgency and that it would be unfair to one side. Ms. Atkinson again requested urgent relief, which was again denied by Corbett J. Ms. Atkinson was advised that there were no further steps available to her prior to the deadlines imposed in the order of Favreau J.

[4] Ms. Atkinson did not comply with the deadlines for perfecting her appeal or for payment of the arrears of rent. Accordingly, on the Landlord’s motion as directed by Favreau J., the registrar dismissed the appeal and lifted the stay of enforcement of the Board’s eviction order.

[5] Then, on March 25, 2020, Ms. Atkinson sought relief from enforcement of the Board’s eviction order. In a lengthy endorsement of March 26, 2020, Corbett J. explained to Ms. Atkinson that, in accordance with the order of Chief Justice Morawetz of March 19, 2020, enforcement of Board eviction orders was stayed absent specific order of the court. As the Landlord had brought no motion seeking such an order, Corbett J. held there was no immediate prospect of any enforcement. Corbett J. went on to warn Ms. Atkinson that “when the immediate situation passes, she will still be subject to the eviction order she now faces as a result of her non-compliance with the order of Favreau J.” In para. 11 he explained:

I wish to be clear with Ms Atkinson about her current situation, however. The Chief Justice’s order suspending evictions continues only so long as regular court operations are suspended. Once that ends, the landlord will be able to enforce the eviction order. Ms Atkinson may pursue a motion for further relief at that time, if she is so minded, but her motion will not be “urgent” until the suspension of enforcement of eviction orders is over.

[6] On August 1, 2020, the moratorium on evictions came to an end. Ms. Atkinson obtained no order from the court prohibiting the Landlord from enforcing the Board’s eviction order. The Landlord therefore enforced the Board’s order and Ms. Atkinson has been evicted from her apartment.

[7] Now, by email to the Divisional Court of September 30, 2020, Ms. Atkinson moves for an order setting a date for her requested review, by a full panel of the Divisional Court, of the February 19, 2020 order of Favreau J.

[8] Ms. Atkinson failed to perfect her appeal and failed to pay her rent in accordance with the Favreau J. order. As a consequence, her appeal was dismissed and the stay was lifted. Ms. Atkinson has taken no steps to reinstate her appeal with the result that, as things currently stand, there is no appeal from the Board’s eviction order. Further, notwithstanding Corbett J.’s warning, Ms. Atkinson obtained no order prohibiting the Landlord from what was, after August 1, 2020, otherwise lawful enforcement of the Board’s eviction order. That eviction has now taken place.

[9] In the circumstances, any review of Favreau J’s February 19, 2020 order appears, on its face, to be moot; that is to say, any review of Favreau J.’s order now, given all that has happened, will have no practical value, meaning or relevance. If Ms. Atkinson’s motion for review is moot, it can have no chance of success.

RULE 2.1

[10] Ms. Atkinson should be provided with an opportunity to explain why her motion for review of the February 19, 2020 order of Favreau J. should not be dismissed as being frivolous and vexatious. In this context, a “frivolous” motion is one that cannot succeed. A “vexatious” motion is one brought for an ulterior or wrongful purpose, Currie v. Halton Regional Police Services Board.

[11] On reviewing the material forwarded by the registrar, the Court makes the following order:

a. under Rule 2.1.01(3)(1), as incorporated by Rule 2.1.02(2), the registrar is directed to give notice to Ms. Atkinson in Form 2.1A that the Court is considering making an order under rule 2.1.02 dismissing her motion to review the order of Favreau J. dated February 19, 2020;

b. pending the outcome of the written hearing under rule 2.1 or further order of the Court, the motion to review the order of Favreau J. is stayed under s.106 of the Courts of Justice Act;

c. the registrar shall accept no further filings in the motion to the panel excepting only Ms. Atkinson’s written submissions if delivered in accordance with rule 2.1.01(3); and

d. in addition to the service by mail required by Rule 2.1.01(4), the registrar is to serve a copy of this endorsement and a Form 2.1A notice on Ms. Atkinson and counsel for the respondent by email.

Penny J.

Date: October 23, 2020